Can The Opinion Work Product Doctrine Allow Withholding of Intrinsically Unprotected Documents?

December 18, 2019

Unlike the attorney-client privilege, the work product doctrine comes in two varieties. Fact work product protection can cover purely factual documents, photographs, test results, etc. Opinion work product can protect documents that contain or reflect lawyers’ or other client representatives’ opinions. Litigants always seek that protection, because courts absolutely or nearly absolutely protect opinion work product.

In M.H. v. Akron City School District Board of Education, defendant claimed opinion work product protection for its general counsel’s “file materials.” Case No. 5:18-cv-870, 2019 U.S. Dist. LEXIS 156053, at *20 (N.D. Ohio Sept. 12, 2019). After reviewing the 281 pages in camera, the court concluded that while “certain documents, when viewed in isolation, would be discoverable,” the “compilation of documents is rife with [the general counsel’s] and outside counsel’s, mental impressions, including thought processes, opinions, conclusions, and legal theories.” Id. The court quoted an Eighth Circuit decision recognizing this type of absolute opinion work product protection – although most courts cite the Third Circuit’s decision in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).

The absolute or nearly absolute opinion work product doctrine can extend to a lawyer’s compilation of intrinsically unprotected documents. In selecting such documents, lawyers would be wise to memorialize the role of their opinion in deciding what to include.